New Hampshire Politics
Merrimack, NH 03054
Carroll, Dec. 4, 1902
APPEAL, from the judgment of a justice of the peace on a complaint
under section 14, chapter 93, Public Statutes, as amended
by section 1, chapter 61, Laws 1901. Trial by the court (Stone, J.)
by agreement, and verdict of guilty, which the defendant moved to set
aside for error in the rulings. Transferred from the March term, 1902, of
the superior court upon a bill of exception.
The defendant moved to quash the complaint on the ground that the
statute under which it was brought is unconstitutional.
The state's evidence tended to prove the following facts: The defendant
has the custody and control of his daughter Alice, aged
ten years. They reside in the school district of Tamworth in this county,
in which a public school is annually taught. Alice has never been instructed
in any private school approved by the school board, and has not acquired
the common English branches. She has not attended the public school all
the time it was in session, and has not been excused from attendance by the
school board. Nor formal application was ever made for such excuse; and no
evidence as to the condition of the child, other than the statement of
the defendant to the school board, was ever offered to the board until the day
of trial.
The defendant offered evidence to show that Alice was in feeble
health; that he took her from school, believing in good faith that
her attendance at and confinement in school would seriously injure
her reason and health; that he so informed two members of the school
board before he removed her from the school, and offered evidence of a
physician that her confinement in the school would greatly endanger her
life; all of which evidence was excluded, and the defendant excepted.
Edwin G. Eastman, attorney-general, and Sewall W. Abbott,
for the state.
Arthur L. Foote, for the defendant.
REMICK, J. The motion to quash the complaint, on the ground that the statute
upon which it was founded is unconstitutional, was properly denied. The
statute is as follows: "Every person having the custody and control of a
child between the ages of eight and fourteen years, residing in a school
district in which a public school is annually taught, shall cause such
child to attend the public school all the time such school is in session,
unless the child shall be excused by the school board of the district
because his physical or mental condition is such as to prevent his
attendance for the period required, or because was instructed in the
English language in a private school approved by the school board for
a number of weeks equal to that in which the public school was in
session, in the common English branches, or, having acquired those
branches, in other more advanced studies. Any person who does not
comply with the requirement s of this section shall be fined ten
dollars for the first offence and twenty dollars for every subsequent
offence." P.S., c. 93, s.14; Laws 1901, c. 61, s. 1.
That education of the citizen is essential to the stability of the state,
is a proposition too plain for discussion. As a mere generalization
of our own it would command immediate and universal assent. But it rest
upon a firmer foundation. The constitution declares that "knowledge
and learning, generally diffused through a community," are essential
to the preservation of a free government. Const. art. 82. Nor does
it stop with this abstract statement. It provides that "it shall be
the duty of the legislators and magistrates, in all future periods of
this government, to cherish the interest of literature and the sciences,
and all seminaries and public schools." Const., art. 82.
Showing that something more than a mere sentimental interest was
intended by the injunction "to cherish the interest of literature,"
etc., this court has said: "The clause in the constitution ... in
regard to the encouragement of literature, in connection with the
early legislation on the subject,...shows conclusively, if any such
evidence were needed, that the framers of the constitution, as well
as their contemporaries in the legislature, regarded the subject of
education as one of public concern, to be cherished, regulated, and
controlled by the state; and the great multitude and variety
of acts
passed since show that no different view has ever been entertained...
The constitution enjoins the duty in very general and comprehensive
terms, on magistrates and legislators, as one of paramount public
importance." Ladd, J., in Farnum's Petition,
51 N.H. 376,
378, 379. It thus being the constitutional duty of the legislature to diffuse
knowledge and learning through the community, it must be within the
constitutional power of the legislature to enforce school attendance to
that end. But the right is not left to implication. "Full power and
authority are hereby given and granted to the said general court,
from time to time to make, ordain, and establish all manner of
wholesome and reasonable orders, laws, statutes, ordinances, directions,
and instructions, either with penalties or without, so as the
same be not repugnant or contrary to this constitution, as they may
judge for the benefit and welfare of this state, and for the
governing and ordering thereof." Const., art. 5
Whether the statute in question is "wholesome and reasonable,"
within the meaning of the provision of the constitution last referred
to , is a question over which the court has no control. "The ample
authority and conferred upon the legislature to make, ordain, and
establish all manner of wholesome and reasonable orders, laws, and statutes,
which it shall judge to be for the good and welfare of the commonwealth,
necessarily invests that department of the government with the right of
determining conclusively upon the propriety and reasonableness of all
provisions which are not in some way repugnant to the constitution.
Commonwealth v. Williams, 6 Gray 1, 3; Orr v. Quimby,
54 N.H. 590, 608. "The judiciary can only arrest the execution of a statute
when it conflicts with the constitution. It cannot run a race of
opinions upon points of rights, reason, and expediency with the law-making
power." Coo. Con. Lim. 201. "We have not to inquire into the policy
of the law, or, if the purpose be admitted to be public, whether the
supposed public good to be attained was sufficient to justify the
legislature... All mere questions of expediency, and all question respecting the
just operation of the law, within the limits prescribed by the constitution,
were settled by the legislature when it was enacted. The court have only
to place the statute and the constitution side by side, and say whether
there is such a conflict between the two, that they cannot stand together."
Ladd, J., in Perry v. Keene, 56 N.H. 514, 530.
Being without brief or argument from the defendant, we are not
advised upon what ground he asserts the unconstitutionality of
the act. Certainly, it is not unconstitutional merely because,
in obedience to the mandate of the constitution, and for
"the preservation of a free government, " it interferes in some
measure with the natural right of parental dominion. "When men enter into
a state of society, they surrender up some of their natural rights
to that society, in order to secure the protection of others"
(Bill of Rights, art. 3), and subject themselves to innumerable restrictions
and regulations for the common good. State v. Express Co.,
60 N.H. 1`9, 253, 254. But the surrender is not absolute. there are
"certain natural, essential, and inherent rights" reserved by the
constitution, and of which the citizen cannot be deprived by legislative
enactment; rights "paramount to all governmental authority,"
and which no legislation can invalidate or abridge, (Wooster v. Plymouth,
62 N.H. 193, 200; State v. Jackman, 69 N.H. 318);
rights "higher and earlier in origin than the constitution or
the common law, not superseded by those temporal and finite
systems, but sustained and enforced by their declaration and sanction
of the highest, primary, eternal, and infinite law of nature."
Aldrich v. Wright, 53 N.H. 398, 399. And so it was held, that one might
lawfully kill a mink in defence of his geese, notwithstanding the existence
of a statute providing that "no person shall in any way destroy . .. any mink,
. . . under penalty of ten dollars for each animal so destroyed"; the the
owner's "natural, common-law, and constitutional right of defence
existed in full force and vigor, not repealed, nor in the slightest
degree impaired or modified, by the statute"; that "he could
exercise that right as fully and freely as if the statute had not been
enacted." Aldrich v. Wright, 53 N.H. 398, 400. For the
preservation and propagation of fur-bearing animals, in the interest
of society at large, the legislature had the undoubted right to
prohibit their destruction, within a certain season, for purposes of
sport, profit, or the like; but they could not repeal the
constitutional right of defence. Aldrich v. Wright, 53 N.H.
398, 399, 400.
If statutory prohibitions and penalties are thus impotent to
take away the inherent right of defence when invoked in behalf of
one's geese, surely they must be so when the right is resorted to in
defence of one's own life or that of his child. For the diffusion of
knowledge and learning through the community, the legislature
have the undoubted right, as against the mere will and pleasure of
a parent, to require him to send his child to school;
but they cannot repeal the natural, common-law, and constitutional right of
the parent "to do whatever, apparently, is reasonably necessary to
be done in defence" of the life of his child. If it was apparently
reasonably necessary, in defence of his geese, that the owner should
then and there destroy the mink, the legislature could not
constitutionally require him to first get permission of the game
warden. So, if apparently reasonably necessary for a parent to keep or
withdraw his child from school, in defence of the child's life, without
first applying for excuse by the school board, the legislature cannot
compel him to first make such application. Of course, in case of complaint
against a parent for withdrawing or detaining his child from school without
excuse form the school board, the burden would be upon the accused to show
that what he did was apparently reasonably necessary in defence of the
child's life. Failing, he would be amenable to the statute. Succeeding, he
would be exempt from its operation. But upon this question of
reasonable necessity, he would be entitled to the judgment of
his peers. A parent cannot be required to imperil the life
of his child by delays incident to an application to the school
board, before he can lawfully do what is apparently reasonably
necessary for its protection.
The letter of the statute in question prohibits the parent from
keeping or withdrawing his child from school, without consent of
the school board, even when apparently reasonably necessary to do
so in order to preserve the child's life. To this extent the statute,
taken literally, contravenes the constitutional right of defence to
which we have referred. But "as the legislature could not
abolish the right, they are not presumed to have attempted an impossibility,
or to have intended to pass a void act; and the statute is
held valid by giving it a construction compatible with the constitution,
making it applicable only to those cases to which it can be
constitutionally applied." Aldrich v. Wright, 53 N.H. 398, 399.
To illustrate: One whose child is stricken by some malady, making
detention from school reasonably necessary in defence of the child's
life, breaks no law of this jurisdiction by hastening for doctors and
nurses instead of
to the board of education. On the other hand, if he keeps his child
from school merely to suit his own or his child's pleasure, or for
any other reason not
within the exception provide by the act or guaranteed by the
constitution, he must suffer the penalty. Indeed, as thus limited,
the law is a decided invasion of the parental domain; but being repugnant
to no
provision of the constitution, and being for "the benefit and welfare of
this state, and for the governing and ordering thereof," the citizen, in
fulfillment of the social compact, must yield submission and obedience.
School Board v. Jackson, 7 Q. B. Div. 502;
Burdick v. Babcock. 31 Ia. 562, 568, 569, 570, 571;
Donahoe v. Richards, 38 Me. 379, 391, 395, 396, 397; Schoul. Dom.
Rel. 235.
The statute requires attendance "all the time . . . school is in
session," and, as would appear, makes no provision for excuse
excepting on account of the physical and mental condition of the
child. Literally construed, the parent incurs its penalty who
keeps his child from school a single day for any other cause, however
imperative, even though it be to attend the mother's funeral.
It is inconceivable that the legislature intended the act to have
such sweeping effect.
Section 14, chapter 93, Public Statutes, required the parent to
cause his child, if between the ages of eight and sixteen years,
to attend school twelve weeks in each year, six of which should be
consecutive. Under this statute, we are not aware that it was
suggested that mere occasional and temporary absences could not be
permitted by the school board for other causes than the physical or
mental condition of the child. The statute in question amended that
statute by substituting the
entire school yea for twelve weeks, as the compulsory attendance period,
and made it
apply to children between eight and fourteen, instead of between eight
and sixteen years of age. In this view, it is reasonable to suppose
that the words "twelve weeks" in the statute which preceded it, were
used for the purpose of establishing a compulsory attendance period in
a general sense, and had no reference to occasional and temporary
absence not inconsistent
with the general design already indicated; but left such absence
subject to any reasonable regulations the governing board might
see fit to establish. P.S., c. 93, s. 6. See Laws 1901, c. 16, s. 7.
2. "The defendant offered evidence to show that Alice was in
feeble health; that he took her from school, believing in good faith
that her attendance at and confinement in school would seriously
injure her reason and health; that he so informed the two members of
the school board before he removed her from the school, and offered
evidence of a physician that her confinement in the school would
greatly endanger her life; all of which evidence was excluded and the
defendant excepted." This evidence tended to show that the action of
the respondent in withdrawing
Alice form school was apparently reasonably necessary in defence of
her life. It also tended to show an attempt by the respondent to
comply with the law. The law is not adapted nor intended for formal action.
Upon the evidence as state, in the absence of objection or request for
further action by the school officers, the defendant may have been
justified in understanding that the shcool board did not
object, and the jury may find that the child was in fact excused.
It may also be found upon the evidence that the child was so unfit for
school that the only reasonable result of any investigation by the school
board must have been her
excuse from attendance. The statute was intended to secure the attendance
of children who were able, not to confer arbitrary power upon the shcool
board. To require a parent whose child was confined in bed during the
year to apply for and secure an excuse, would be an idle formality.
Such was not the purpose or intent of the law. The evidence was
competent, and its exclusion was error.
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